Legal Commentary

Epstein for the Supreme Court?

By David Bernstein

Dahlia Lithwick often seems to live in a different world than I, and, I think, other mortals. Take this line from a recent Slate piece:

This has political implications, certainly, but my concern here is with the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society?Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell?are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House.

Don?t get me wrong, I love Richard Epstein, and few things would please me more than to see him on the Supreme Court. But the idea that he would be seen as a legitimate candidate for the Supreme Court by a Republican president? Even though he has argued that all laws barring discrimination in the private sector should be repealed? Completely insane.

Then she adds: ?Look at the speakers list of the last national Federalist Society conference and tell me the word filibuster would have been raised if John McCain had tapped most of them.? Okay, leaving out moderators and non-lawyers, at a minimum the following candidates would have been threatened with a filibuster and in most cases filibustered if it came down to it (assuming even the Republican Senators supported them): Epstein, Dan Troy, Miguel Estrada, Peter Kirsanow, John Eastman, Rick Hills, Ilya Somin, Randy Barnett, Todd Zywicki, Stephen Bainbridge, Frank Easterbrook, and Geoffrey Miller. There may be more, but I?m not familiar with all of the speakers and their records, and few of the remaining speakers strike me as conservative law students? heroes. If you look at the most recent student convention, I?d say that just about every Federalist Society fellow traveler speaker would be filibustered if a Republican deigned to nominate one of them.

H/T Jacob Levy via Facebook

Full post as published by The Volokh Conspiracy on April 16, 2010 (boomark / email).